Federal Courts and Nominations

Ten Questions for SCOTUS Nominee Amy Coney Barrett

As U.S. Supreme Court nominee Judge Amy Coney Barrett prepares to face the Senate Judiciary Committee Monday, court-watchers and scholars have their own questions for Barrett that include recusal in 2020 election cases, originalism and immigration, and stare decisis and abortion.

We asked some of them what they would ask, if they could ask just one question of the nominee. Some couldn’t resist adding a second question. Here is what they had to say:

Gabe Roth, executive director, Fix the Court: “In the wake of the deaths of Justices Scalia and Ginsburg, many have decried the role of chance in filling vacancies at the Supreme Court. What are your thoughts on standardizing the appointment process, and would you commit to limiting your tenure to 18 years—the ‘going proposal’ on tenure, as Justice Kagan called it in 2018—if confirmed?”

“Due to age, five Supreme Court justices face a higher risk of severe illness or death if they contract COVID 19: Justice Stephen Breyer is 82, Justice Thomas is 72, Justice Alito is 70, Justice Sotomayor is 66, and Chief Justice Roberts is 65. Yet you and your family have demonstrated you do not take the virus seriously, having not worn masks or distanced during the indoor or outdoor portions of the Sept. 26 White House event. If confirmed, do you believe other justices should feel safe around you?”

David Lat, founding editor of Above the Law and legal recruiter at Lateral Link: “Can you discuss the diversity of your law clerks during your time on the Seventh Circuit, and, if confirmed to the Supreme Court, what efforts would you make to hire a diverse group of law clerks going forward?”

Ilya Somin, George Mason University Antonin Scalia School of Law: “One of the most important legal issues of our time is whether constitutional constraints that apply to other exercises of government power should also apply with the same force to immigration restrictions. The text and original meaning of the Constitution make no distinction between constitutional standards that apply to immigration and those that apply to other policies. Yet courts often read such distinctions into the Constitution, nonetheless. Do you believe immigration policy should be subject to the same level of judicial review as other federal policies, or should it get little or no scrutiny? Why?”

Jonathan Adler, Case Western Reserve University School of Law: “Judge Barrett, in your academic writing on the importance of precedent, you wrote that judges must ‘take account of reliance interests’ in order to avoid unnecessarily ‘upsetting institutional investment’ in prior precedents or disrupting continuity. Can you explain what sorts of reliance interests would justify adhering to an erroneous constitutional precedent, and how you, as a justice, would seek to balance the demands of your oath to the constitution and the need for stability and continuity in the law?”

Ilya Shapiro, Cato Institute: “Are there any cases you’ve ruled on where, if you’d been making a policy decision, you would’ve gone the other way?”

Mike Davis, founder and president of the Article III Project, established to fight to confirm President Donald Trump’s judicial nominees: “The First Amendment guarantees the free exercise of religion. Article VI of the U.S. Constitution makes it clear that we cannot have any religious test for federal officers, including judges. Yet Senate Judiciary Democrats, including committee Democrat leader Dianne Feinstein and Dick Durbin, the No. 2 Senate Democrat, grilled you about your Catholic faith in your 2017 Senate confirmation hearing to your current post on the Seventh Circuit Court of Appeals. Sens. Kamala Harris, the current Democrat vice-presidential nominee, and Mazie Hirono grilled Judge Buescher, a Nebraska federal district-court nominee, about his membership in the Knights of Columbus, a Catholic men’s charity. How do you respond to Senate Democrats’ inquisitions into the personal religious beliefs of federal judicial nominees?”

Kate Shaw, Yeshiva University Cardozo Law School: “Do you believe it is important for the public to view the Supreme Court as standing outside of politics? If so, is there some danger in politicians, including sitting presidents, announcing to the public how they expect their Supreme Court nominees to vote in particular cases or categories of cases?”

Elizabeth Wydra, president, Constitutional Accountability Center: “Sitting in the same position as you are now, then-Judge Ruth Bader Ginsburg explained her view that the right to choose whether to terminate or continue a pregnancy is protected by the Constitution under the equal protection and due process clauses of the 14th Amendment. She said the ‘right to decide whether or not to bear a child … is something central to a woman’s life, to her dignity. It’s a decision she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.’ Do you agree that meaningful liberty and equality, guaranteed in the Constitution, requires reproductive choice, and if so why or why not?”

“In your academic writings, you have recognized the ‘tension between stare decisis and originalism’ and noted that ‘many claim that originalism cannot account for important precedents, including the New Deal expansion of federal power, the administrative state, and Brown v. Board of Education.’ As a self-proclaimed originalist, do you think Brown is consistent with the Constitution, as well as other cases that affirm our federal government’s ability to provide national solutions to national problems, such as civil rights laws, Medicare/Medicaid, Social Security, workplace and consumer safety, and environmental protections? What is your understanding of the ‘original public meaning’ of the Constitution in these areas?”

Senate Republican Leader Mitch McConnell, R-Kentucky, has said he intends to hold four days of hearings, beginning Monday. He has not announced when he expects the full Senate to receive and vote on Barrett’s nomination.

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